HVAC Technician Wins Case Despite “Hired Gun” Insurance Doctor’s Report

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The injured worker’s law team at Abrams Landau, Ltd. received a winning decision this month from the Virginia Workers’ Compensation Commission (VWC) for a senior HVAC technician with a prior, serious workplace back injury. The client was alleging an injury by accident to his lower back.

The defendants (his employer and his employer’s insurance company) agreed that the employee, our client, sustained a compensable injury by accident, resulting in a lumbar strain. However, the employer and workers’ comp insurer defended the claim on the grounds that the claimant was not disabled to the extent alleged; that any ongoing disability and medical treatment was causally unrelated to the compensable accident; that the claimant failed to market his residual capacity during any periods of partial incapacity; and that the treatment with National Spine & Pain that he underwent was unauthorized.

Example of the heavy freon container that caused the HVAC Technician’s back injury. Herndon Virginia workplace injury lawyer Doug Landau notes, “Photographs help me and my clients explain the nature of their jobs to the judge, so that they can understand how the injury occurred and the heavy duty nature of the job. Pictures and testimony are a great combination for making a solid case in court!”

Since the employer and insurer agreed that there was an “incident” and the average weekly gross wage rate, the comp judge had to decide on these four issues:

1. The extent of the claimant’s disability

2. Whether the ongoing disability and medical treatment are causally related to the compensable injury

3. Whether the claimant marketed his residual capacity

4. Whether the treatment with National Spine & Pain is unauthorized

The claimant was employed as a senior HVAC technician prior to this injury. He worked alone and testified that his regular job involved lifting and carrying various equipment weighing between 10-75 pounds on a daily basis, including heavy tanks. He identified 12 photographs of the equipment used, and stated that all were necessary to the performance of his job.

Prior to the accident, the claimant testified that he had no difficulty performing his job, that he was under no restrictions, and that he worked 35-36 hours/week. Since the accident, he has been under restrictions and has had pain in his lower back, left leg and sometimes his right leg.

In support of his testimony, his wife testified that she has known the claimant for five years. Since the accident, she has observed that he is in pain all the time, that he cannot put his own socks on, and that he has knots in his mid/low back.

Because the insurance company disputed the nature and extent of this long-time employee’s injury, they paid a lot of money to have him examined by a doctor of their choice. The insurance company doctor reviewed the claimant’s medical records, including records from before this incident and performed a physical examination. This hired defense witness concluded that the claimant suffered from preexisting lumbar spondylolisthesis at L5-S1, and preexisting lumbar degenerative disc disease with nerve root compression at L5-S1. The insurance doctor, however, also stated that the claimant suffered an “acute lumbar strain without structural injury or permanent impairment secondary to the alleged injury.” He opined that reasonable treatment would have been 8-10 visits of physical therapy followed up by three lumbar epidural injections. He further stated that no additional medical treatment was necessary and that there is no specific or objective disability related to this accident.

The Hearing in Manassas, Virginia was held in April 2019, and the judge’s opinion issued on August 2nd, finding a compensable injury by accident, in the course and scope of work, for which wage loss and medical benefits were awarded, included the disputed National Spine & Pain treatment. The VWC also found that the injured worker did not have to market, as he returned to work for his employer in a light duty capacity at the same hours and pay as he had earned prior to the injury. The Landau injury law team is now looking to see if insurance defense counsel will be appealing this decision.